The court ruled the board did not have jurisdiction in the case involving the two ordinances used to approve the master planned developments.

The board had ruled Feb. 15 the city should have used a legislative rather than quasi-judicial process when approving the master planned development ordinances. The board sent the ordinances back to the city for compliance with Growth Management Act.

The appeals court agreed to hear the case and the attorneys for the parties presented their arguments on Nov. 1.

The opening paragraph of the Dec. 27 Court of Appeals ruling stated, “The Central Puget Sound Growth Management Hearings Board lacked jurisdiction to review the 2010 ordinances enacted by the City of Black Diamond approving the master plan development permits for Yarrow Bay. We reverse.”

The issue addressed directly by the appeals court centers on whether the ordinances were project permits or amendments to the city’s comprehensive plan or development regulations, which is under the jurisdiction of the board.

The court ruled the ordinances were project permits stating in the document, “We hold the 2010 MPD ordinances adopted by Black Diamond were project permit approvals. The Board lacked jurisdiction to review these permits.”

The court also stated it agreed with the YarrowBay argument that the challenge was an “impermissible collateral attack on the 2010 ordinances.”

The ruling stated “TDR’s (Toward Responsible Development) challenge to the City’s permit approval must be under LUPA (Land Use Petition Act) in superior court, not under the GMA before the Board.”

The ordinances were unanimously approved by the City Council Sept. 20, 2010. Toward Responsible Development filed challenges in superior court under LUPA and to the board.

A stay was granted in the superior court LUPA appeal while the court of appeals heard the case.

Black Diamond Mayor Rebecca Olness said by phone Tuesday, “It was good to see the court of appeals pronounce our process as legal. I always believed we had done this right and followed our code. I have the utmost confidence in our staff and city attorney and I am thrilled the court of appeals recognizes this.”

David Bricklin, the Seattle attorney representing Toward Responsible Development, said the group will soon decide whether to ask for a review by the appeals court or petition the state Supreme Court.

A motion for review by the appeals court must be filed in 20 days and a petition for review must be filed in 30 days to the Supreme Court.

Bricklin stated by phone Tuesday the ruling was “not the end of the line. This is like a game of Chutes and Ladders and we are going to start back up.”

Bricklin said the LUPA appeal outlines many claims the superior court will be considering including “the EIS (environmental impact statement) inadequacy. That would knock out the whole thing.”

According to Bricklin there is also an appearance of fairness issue in the LUPA appeal, a due process violation that is also in federal court, adequate information about traffic impacts and the ordinances conflict with the city’s comprehensive plan calling for call for protection of Black Diamond’s small town character.

Bricklin said these and many other issues in the LUPA claim “the court (of appeals) did not address.” He noted the appeals court ruling stated the proper venue for pursuing the claims is the superior court,

“That is a decision we can live with,” Bricklin said.

Mike Kenyon, from the Issaquah firm Kenyon Disend that provides city attorney services for Black Diamond, wrote in an email, “From the City Attorney’s perspective, it’s gratifying to see that the Court of Appeals agrees with the public policy set forth by the Black Diamond City Council that the MPD permits are, in fact, permits. The Growth Board’s erroneous ruling here was just another example of the Growth Board’s impermissible intrusion into an area that is properly the role and function of elected city officials. The Growth Board is not some form of ‘super city council,’ and it does not set public policy within the Black Diamond city limits (or any other city limits). The City Council is charged with that responsibility, and did so here by unanimous vote after a lengthy and comprehensive process. The Court of Appeals recognized that, and understandably reversed the Growth Board’s decision.”

Brian Ross, CEO of YarrowBay wrote in an email, “This Court of Appeals decision confirms what we’ve been saying all along — we’re doing it right, we’re following code and most of all, we’re excited to continue moving forward to work with the city and the citizens to implement our MPDs.”

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